Empowerment Through Restraint: Reverse Preemption or Hybrid Lawmaking?

55 Pages Posted: 23 Jan 2009 Last revised: 20 Feb 2009

See all articles by Laura E. Little

Laura E. Little

Temple University - James E. Beasley School of Law

Date Written: January 22, 2009


In the jurisprudence of federal jurisdiction, we often observe federal courts exerting power and control under the banner of restraint and deference to states and to other branches of the federal government. This article explores two examples of this empowerment technique, in which the United States Supreme Court deployed federal judicial power to resolve choice of law questions. The examples come from diverse contexts, unlikely bedfellows for analysis: foreign affairs and bankruptcy. In both contexts, the Roberts Court acted in the name of respect for state prerogatives, but bestowed on itself and other federal judges considerable latitude to determine the outcome of suits.

The foreign affairs illustration of this "negative" empowerment technique is the Supreme Court's 2008 decision in Medellin v. Texas.. Framed as a choice of law case, Medellin presented the choice between state procedural default rules and treaty provisions interpreted by the International Court of Justice. The bankruptcy illustration derives from a line of cases beginning with Butner v. United States and analyzing the choice between state law and federal bankruptcy law. In both illustrations, the Supreme Court named state law as "the winner."

Beyond showing how the Supreme Court's choice of law analysis empowers the federal judiciary, this article also explores how the Medellin and bankruptcy cases add to a growing body of hybrid law. Working within the confines of federal principles, the Court allowed other sovereignties (states) to provide meaningful contributions to federal regulation and thereby successfully navigated a permeable line between state and federal law. This bodes well for the future of hybrid lawmaking in general. Might the Court's approach also provide an upbeat message for debates about whether United States courts should integrate international and transnational principles in their decisionmaking?

Keywords: federal jurisdiction, procedural default, hybrid law, hybridity, choice of law, conflict of laws, preemption, Medellin, Butner, Erie doctrine, bankruptcy, foreign affairs, foreign law, transnational law

JEL Classification: K12, K19, K22, K33, K41

Suggested Citation

Little, Laura E., Empowerment Through Restraint: Reverse Preemption or Hybrid Lawmaking? (January 22, 2009). Case Western Reserve Law Review, Vol. 59, 2009; Temple University Legal Studies Research Paper No. 2009-8. Available at SSRN: https://ssrn.com/abstract=1331588

Laura E. Little (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8955 (Phone)
215-204-1185 (Fax)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics